PARTY AUTONOMY AS AN UNDERLYING PRINCIPLE OF CISG, PECL, PICC AND DCFR

The principle of freedom of contract, which applies as a general rule in all European legal systems, is also expressed in the CISG, PECL, PICC and DCFR. Article 1:102 PECL provides that:

In the DCFR also freedom of contract is the starting point. It is submitted in the section on underlying principles that as a rule, natural and legal persons should be free to decide whether or not to contract and with whom to contract, to agree on the terms of their contract and to agree at any time to modify the terms of their contract or to put an end to their relationship. This freedom is of course subject to the application of mandatory rules.

The UNIDROIT Principles on International Commercial Contracts contain a similar rule in the Article 1.1. According to this article, “The parties are free to enter into a contract and to determine its content.” Moreover, in Article 1.5, the PICC provide that “The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles”. In the comments on the PICC Article 1.1., it is emphasized that the principle of freedom of contract is of paramount importance in the context of international trade:

Similarly, Article 6 of the UN Convention on Contracts for the International Sale of Goods (CISG), states that the parties may exclude the application of this Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.